Opinion
No. 350554
04-09-2020
In re LMDM NEWTON, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court Family Division
LC No. 19-001081-NA Before: CAMERON, P.J., and SHAPIRO and LETICA, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order removing the minor child, LN, from his home pursuant to MCL 712A.14(3)(b) and 712A.2(b)(2), following a preliminary hearing. We dismiss this appeal as moot.
Respondent, who is LN's great-uncle, was appointed his guardian in early 2016, shortly after LN turned one. In August 2019, LN was removed from respondent's home after the police executed a search warrant and discovered 164 grams of methamphetamine along with an additional 40 grams of methamphetamine on respondent's person. Notably, LN was sitting on the couch near drug paraphernalia. Thereafter, respondent admitted to receiving large quantities of methamphetamine from Las Vegas, which he sold in smaller quantities in Michigan.
In June 2019, respondent had tested positive for methamphetamine and amphetamine and had left LN in the care of his spouse as well as his roommate. Both respondent's spouse and roommate appeared under the influence, and, later, tested positive for methamphetamine and amphetamine. On that occasion, police also found methamphetamine and drug paraphernalia in respondent's house, albeit not to the extent discovered in August.
Respondent also serves as the guardian for his spouse, who is a diagnosed schizophrenic suffering from post-traumatic stress disorder.
In addition, in mid-July 2019, respondent had confronted his spouse about masturbating in their front yard. This resulted in respondent's spouse threatening respondent with a knife in LN's presence.
On the August day that the police raided respondent's home, LN was removed. The Department of Health and Human Services (DHHS) petitioned the family court to take jurisdiction over LN. The DHHS's petition included allegations against LN's parents as well as respondent in his role as LN's legal guardian.
Following a preliminary hearing, respondent appealed as of right the lower court's order removing LN from his care. MCR 3.965(B)(15).
On September 23, 2019, thirteen days after respondent filed his appeal in this matter, the Washtenaw County Circuit Court entered an order terminating respondent's guardianship over LN. Because respondent no longer has a guardianship relationship to LN, we cannot return LN to respondent's custody. Accordingly, we dismiss respondent's appeal as moot. CD Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389, 406; 834 NW2d 878 (2013) ("[A]n issue becomes moot when an event occurs that renders it impossible for the reviewing court to grant relief.").
We take judicial notice of this order, MRE 201(b), (c), and (e), which is also reflected in the Washtenaw County Circuit Court's online docket entries. In re Matter of Newton, unpublished order of the Washtenaw Circuit Court, entered September 23, 2019 (Docket No. 17-000126-GM).
To be clear, even if we reached the merits of respondent's legal challenges to his counsel's performance during the preliminary hearing and the court's determinations thereafter, we would reject them.
Respondent suggests that his courtappointed counsel performed deficiently by failing to present evidence that respondent possessed methamphetamine because he was acting as a confidential informant for federal and state authorities. According to respondent, this establishes that he was not acting criminally, and, therefore, there was no probable cause that the allegation of criminality made against him under MCL 712A.2(b)(2) was true. However, nothing in the record supports respondent's contention that he was acting as a confidential informant. Respondent's failure to establish the factual predicate for his claim means he is not entitled to any relief. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Moreover, we cannot fathom how using methamphetamine and amphetamine and leaving both methamphetamine and its accompanying paraphernalia within LN's vicinity fails to demonstrate criminality, regardless of respondent's alleged confidentialinformant status. Indeed, contrary to respondent's assertion before this Court that he was acting as a confidential informant for both federal and state authorities, he is currently federally indicted for conspiracy to distribute a controlled substance (namely, methamphetamine) as well as selling, distributing, or dispensing a controlled substance (namely, possession with intent to distribute methamphetamine). United States v Alward, United States District Court, Western District of Michigan (Southern Division), Criminal Docket No. 1:19cr0026RJJ1. And, following respondent's federal indictment, the Ingham County Prosecutor's Office dismissed without prejudice its state criminal charge of delivery/manufacture methamphetamine against respondent. People v Alward, Ingham County Circuit Court Docket No. 2019000750FH. Again, taking judicial notice of these federal and state matters, MRE 201(b), (c) and (e), we reject respondent's contention that his attorney's performance was deficient or that he was prejudiced by his lawyer's failure to present nonexistent evidence of respondent's confidentialinformant status. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) ("Failing to advance a meritless argument . . . does not constitute ineffective assistance of counsel.").
We, likewise, reject respondent's contention that the lower court clearly erred in ordering LN to be removed from his home when he was LN's legal guardian. The trial court did not clearly err by finding probable cause to believe that leaving LN in the home was contrary to his welfare as the caseworker's testimony amply supported that determination. See In re COH, ERH, JRG, & KBH, 495 Mich 184, 191; 848 NW2d 107 (2012). Nor did the court clearly err by finding that reasonable efforts were made to prevent LN's removal when the caseworker specifically testified that such efforts were made.
Dismissed.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Anica Letica